Welcome to The On-Ramp, the newsletter from Venable's team. The On-Ramp explores legal and policy developments in the world of autonomous vehicles ("AVs"), smart infrastructure, and emerging mobility technologies, from Capitol Hill to the U.S. Department of Transportation ("USDOT") and beyond.
March and April of 2022 saw the USDOT produce a final rule on vehicle occupant protection that includes considerations for AVs and the first USDOT-ordered recall of an automated driving system. The Department also moved forward with updates to the New Car Assessment Program and announced a new funding program for electric vehicle charging infrastructure that will be operated in partnership with the U.S. Department of Energy. Other recent federal action on mobility issues included a Senate field hearing on the semiconductor supply chain and a workshop on AV standardization issues held by the National Institute of Standards and Technology.
Secretary Buttigieg Testifies at Senate Commerce Committee Hearing
On May 3, 2022, Secretary of Transportation Pete Buttigieg testified before the Senate Commerce Committee on the Department of Transportation's ("USDOT") Fiscal Year 2023 Budget Priorities. During the hearing, senators asked Secretary Buttigieg about autonomous vehicle ("AV") policy, including questions on what the USDOT can do to support innovation and preserve U.S. leadership in the AV industry, the potential to establish a federal regulatory framework for AVs, workforce and jobs issues related to AVs, and the role AVs can play in improving highway safety.
In response to a question on moving AVs toward deployment, Secretary Buttigieg replied that "there is not a lot that would stop an [AV] from being made available," provided that the AV met federal motor vehicle safety standards, and that the USDOT is "working to make sure that [the Department's] regulations keep pace" with developments in AV technology. In a later answer, Secretary Buttigieg noted that "there is more that [the USDOT] can be doing [to support AV development and deployment] with our existing authorities, but [Secretary Buttigieg and the USDOT] also very much believe we need to work with Congress to have a legislative framework that adequately contemplates these kinds of vehicles becoming more widespread." In later answers, Secretary Buttigieg underscored the need for national AV legislation, adding that a division of labor "unofficially exists" between the USDOT and the states, one that "doesn't really contemplate automated vehicles," with the USDOT regulating the safety of vehicle design, while "state DMVs are concerned with the driver." "That framework makes sense," he continued, "until you have a scenario where the vehicle is the driver. I don't know how we can address some of those issues without the involvement of Congress."
When asked about the National Highway Traffic and Safety Administration's ("NHTSA") Standing General Order ("SGO") for data collection regarding advanced driver assistance systems ("ADAS") and automated driving systems ("ADS"), Secretary Buttigieg replied that the SGO's purpose is to assess the safety of AVs and ADAS technologies and to take action if there is an unreasonable threat to safety, and that data collected through the SGO led to the recent recall of an ADS developed by Pony.ai. Secretary Buttigieg added that the SGO could be "refined" through an update to USDOT authorities by Congress.
Senator Peters (D-MI) Holds Field Hearing on Semiconductor Supply Chains and Automotive Innovation
On March 28, 2022, Gary Peters (D-MI), chairman of the U.S. Senate Commerce Committee, Subcommittee on Surface Transportation, Maritime, Freight, and Ports, held a field hearing in Detroit, Michigan, Made in America: The Future of Automotive Innovation and Semiconductor Chips. The hearing focused on the semiconductor supply chain and how disruptions to that supply chain have affected the automotive industry, including electric vehicles ("EVs") and autonomous vehicles ("AVs"). Witnesses at the hearing included representatives from labor, automotive industry groups, and the semiconductor industry.
In his opening statements, Senator Peters framed the future of transportation as "connected, electric, and autonomous," but noted that such a future is dependent on ramping up semiconductor supply chains and reducing the U.S. dependence on foreign chip production. The witnesses' opening statements detailed how reliant modern automobiles are on semiconductor chips and highlighted the temporary assembly plant shutdowns that have occurred because of recent chip shortages. Some witnesses also called for a comprehensive national strategy for chip production, including workforce development, to help build a domestic semiconductor supply chain. Senator Peters and the witnesses then discussed a series of questions on the relationship between the chip supply chain and the development of AVs, the labor and workforce issues that need to be addressed to increase domestic chip production, and how the chip shortage would impact EV production.
U.S. Department of Transportation Activity
NHTSA Seeks Comments on Updates to the New Car Assessment Program
On March 3, 2022, the National Highway Traffic Safety Administration ("NHTSA" or "the Agency") released a request for comment ("RFC"), titled New Car Assessment Program ("NCAP" or "the Program"). The RFC proposes the following updates to NCAP:
- Adding four new advanced driver-assistance systems ("ADAS"), aimed at mitigating high-frequency and high-risk crash types, to the list of technologies tested as part of NCAP. The four new technologies include (1) blind-spot detection; (2) blind-spot intervention; (3) lane-keeping support; and (4) pedestrian automatic emergency braking. NHTSA noted that "future technologies," such as intersection safety assist, would be considered for NCAP as they mature.
- Modifying current testing procedures and performance criteria, including increased stringency, for driver-assistance technologies already included in NCAP, such as forward collision warning.
- Establishing a 10-year roadmap for upgrading NCAP in stages. The RFC requests feedback on (i) the identification of safety opportunities or technologies in development that could be included in future roadmaps; (ii) opportunities to benefit from collaboration or harmonization with other rating programs; and (iii) other issues to assist with long-term planning.
- Considering the potential addition of emerging vehicle technologies related to driver distraction, alcohol detection, seat-belt interlocks, intelligent speed assist, driver monitoring systems, and rear-seat child reminder assist.
In addition, the RFC requests comment on how best to develop a rating system for the ADAS technologies included in NCAP. NHTSA states that the Agency's current method of providing ADAS information to consumers conveys which systems meet NCAP's system performance requirements but does not allow consumers to distinguish between different systems of the same technology. According to NHTSA, as more ADAS technologies become available, a rating system for these technologies would benefit consumers with the rating systems discussed, including (1) stars; (2) medals; or (3) points, while also incorporating baseline risk. The RFC also discusses possible approaches for conveying crash avoidance information on vehicle window stickers.
USDOT Releases 2023 Budget and 2022-2026 Strategic Plan
On March 28, 2022, the U.S. Department of Transportation ("USDOT") announced the release of its 2023 Budget Highlights in conjunction with the USDOT 2022-2026 Strategic Plan.
- 2023 Budget Highlights: The 2023 Budget Highlights document outlines USDOT's budget request, which includes, among other items, (1) $11.8 million for Automated Driving Systems research for innovation and the development of new tests, tools, and procedures to properly evaluate the safety of new technologies surrounding highly and fully automated vehicles ("AVs"); (2) $18.1 million for advanced driver assistance systems, including $3.1 million for heavy vehicle safety technology programs that support testing and deployment of safety technologies for passenger vehicles, large trucks, and buses; and (3) $1.4 billion for electric vehicle charging infrastructure programs.
- 2022-2026 Strategic Plan: The 2022-2026 Strategic Plan highlights USDOT priorities with regard to six "strategic goals," including (1) safety; (2) economic strength and competitiveness; (3) equity; (4) climate and sustainability; (5) transformation; and (6) organizational excellence, and details planned actions related to each strategic goal. The Strategic Plan mentions automation and technological innovations in multiple sections, including the Safety, Economic Strength and Competitiveness, and Transformation sections, although AVs are not specifically mentioned. The Strategic Plan states that USDOT will "conduct research to understand the needs and implications of emerging transportation technologies, such as automation and unmanned aerial systems, for public safety, transportation system use and operations, and infrastructure design," and that it will "work with research and private institutions to harness technological innovations to reduce and mitigate safety incidents."
NHTSA Announces Pony AI Recall
On March 8, 2022, the National Highway Traffic Safety Administration ("NHTSA") released a Part 573 Safety Recall Report ("the Report") and Recall Acknowledgment Letter for a recall on Pony.ai's automated driving system ("ADS"). According to NHTSA, the recall was prompted by an October 28, 2021 crash resulting from the disengagement of the ADS that caused the vehicle to collide with a street sign. The report states that the ADS software was corrected on October 29, 2021, and that the recall affects three Pony.ai vehicles. The crash was reported to the California Department of Motor Vehicles ("DMV") on October 28, 2021 and resulted in the DMV revoking Pony.ai's driverless testing permit on December 13, 2021.
- Description of Cause. NHTSA reports that in rare circumstances, former versions of certain Pony.ai ADS software could confuse otherwise inconsequential rounding errors or discrepancies as a geolocation mismatch. In such cases, a diagnostic check of a vehicle's geolocation systems could then cause the ADS to shut down. According to NHTSA, the reported collision was caused by an ADS shutdown triggered by this software error.
- Chronology. The Report states that less than 2.5 seconds after the software error caused the ADS shutdown, the vehicle's momentum led it to collide with a street sign on the median. That evening, Pony.ai revised the relevant ADS code to correct the coding error. NHTSA notes that the software code was updated for all potentially affected ADS and vehicles on October 29, 2021.
- Recall Schedule. The Report states that the remedy has already been completed on all of the Pony.ai vehicles that had the software installed. NHTSA notes that the code in question is developed and used only in Pony.ai's ADS, which is used exclusively in Pony.ai's noncommercial research and development vehicles. The Report concludes that since Pony.ai, the sole owner of the affected ADS, is aware of the coding error, and remedied that error in October 2021, the company has met its recall notification obligations.
NHTSA Releases Occupant Protection Final Rule
On March 10, 2022, the National Highway Traffic Safety Administration ("NHTSA") released a final rule, Occupant Protection for Vehicles with Automated Driving Systems ("the Rule" or "the Final Rule"). To ensure that vehicles equipped with automated driving systems ("ADS") provide the same levels of occupant protection as current passenger vehicles, the Rule amends Federal Motor Vehicle Safety Standards ("FMVSS") that address occupant protection to account for future vehicles without traditional manual controls associated with a human driver.
NHTSA stated that the Rule is limited in scope in the following ways: (1) the Rule applies only to ADS-equipped vehicles that have seating configurations similar to those of non-ADS vehicles, i.e., forward-facing front seating positions; (2) the Rule addresses ADS-equipped vehicles designed exclusively to carry property ("occupant-less vehicles") by amending the application of existing crashworthiness requirements for these vehicles; and (3) the Rule refrains from amending requirements relating to telltales and warnings, as that area has implications beyond the 200-Series standards and is a subject of continuing NHTSA research. The Rule specifically addresses the following issues:
- Newly Defined, New, and Modified Terms. The final rule includes new definitions for driver air bag, driver dummy, driver's designated seating position ("DSP"), manually operated driving controls, and passenger seating position, as well as modifications to the definitions of outboard designated seating position and steering control system.
- Modifying Spatial References in Test Procedures and Definitions. NHTSA proposed various changes to spatial references for vehicles where there is no driver's seat, a lone passenger seat, or no steering controls. These proposals include using the front row or the front outboard seating position as a reference and substituting the "left" or "right" side of the vehicle for references to the "driver's side" or "passenger side."
- Dual Mode Certification. For dual-mode vehicles capable of stowing driving controls, NHTSA will require manufacturers to certify compliance with all applicable FMVSS in both modes (i.e., when the controls are available and when they are stowed), with the driver's seat considered a passenger's seat while controls are stowed.
- Occupant-less Vehicles. NHTSA explained that existing 200-Series standards need not apply to occupant-less vehicles. With respect to trucks, NHTSA proposed to amend the application sections of FMVSS Nos. 201, 205, 206, 207, 208, 214, 216, and 226 to apply only to trucks with DSPs. In the final rule, NHTSA agreed with industry comments to amend FMVSS Nos. 212 and 219 to clarify that those FMVSS do not apply to occupant-less vehicles.
- FMVSS No. 208, Occupant Crash Protection. When driving controls are not present, any front outboard seat will be required to meet FMVSS No. 208's performance requirements, which currently apply only to the right front outboard passenger seat. NHTSA has also decided to extend the FMVSS No. 208 protections to inboard seating positions, to the extent technically feasible.
FMCSA Releases Final Rule for the Windshield Installation of Vehicle Safety Technology
On March 7, 2022 the Federal Motor Carrier Safety Administration published a final rule, Parts and Accessories Necessary for Safe Operation; Authorized Windshield Area for the Installation of Vehicle Safety Technology. Prior to this final rule, the Federal Motor Carrier Safety Regulations ("FMCSR") prohibited the obstruction of a driver's field of view by devices mounted on the windshield of a commercial motor vehicle ("CMV"), with the exception of "vehicle safety technologies" as defined by the FMCSRs. The final rule amends the FMCSRs to add new items to the definition of vehicle safety technologies and increases the area on the interior of CMV windshields where such technologies can be mounted from 100 mm (4 inches) to 216 mm (8.5 inches) below the upper edge of the area swept by the windshield wipers. The final rule took effect on May 6, 2022.
USDOT and the U.S. Department of Energy Announce the NEVI Program
On February 10, 2022, the U.S. Department of Transportation ("USDOT") and the U.S. Department of Energy ("DOE") announced the establishment of the National Electric Vehicle Infrastructure ("NEVI") Program, along with accompanying guidance from the Federal Highway Administration ("FHWA"). The NEVI Program, created by the Infrastructure Investment and Jobs Act, provides federal funding for the creation of a national electric vehicle ("EV") charging network. The announcement included estimated funding levels for each state over 5 years, with the total combined amount of funding estimated to be $4.155 billion. Funding will be allocated to create a network of EV charging stations along designated Alternative Fuel Corridors ("AFCs"), with priority placed on charging stations along the Interstate Highway System. FHWA is also requesting additional nominations for new AFCs from state and local officials in conjunction with the announcement of the NEVI Program, with nominations due to the FHWA by May 13, 2022.
Funding will be administered and distributed to states by FHWA following the submission and approval of a state plan for the use of NEVI funds to the Joint Office of Energy and Transportation ("the Joint Office"), with the federal cost share for projects set at 80 percent. States are required to submit plans to the Joint Office no later than August 1, 2022. FHWA will approve plans by September 30, 2022, and plans submitted prior to August 1, 2022 will be approved on a rolling basis. FHWA requires states to consider the potential for future expansions needed to support the electrification and charging demands of medium- and heavy-duty trucks when composing state plans, including station size and power levels. NEVI Program funds are restricted to projects directly related to EV charging infrastructure that is open to the public or to authorized commercial motor vehicle operators from more than one company.
Other Federal Agency Activity
NIST Hosts Workshop on Standards and Performance Metrics for On-Road AVs
On March 8-9, 2022, the National Institute of Standards and Technology ("NIST"), part of the Department of Commerce, hosted an online workshop titled "Standards and Performance Metrics for On-Road Autonomous Vehicles." The stated goal for the workshop was "to solicit stakeholder feedback to identify key areas where NIST can develop standards and performance metrics" for on-road autonomous vehicles ("AV"). The workshop was an initial step in NIST's efforts to determine what types of standards could help characterize the performance of AVs.
During the workshop a keynote address discussed the areas in which standardization would be helpful to the development of AVs, followed by panel discussions on AV safety, communication, cybersecurity and privacy, artificial intelligence, and sensor perception. NIST stated it intends to use the event's discussions to inform future actions on establishing technical standards for AV technologies. A recording of the event is available on NIST's website.